LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

GIFT    OF 


BAR  ASSOCIATION  OF  SAN  FRANCISCO 


Report  of  Section  on 
Reform  of  Civil  and 
Criminal  Procedure 


Bar  Association  of  San  Francisco 


REPORT  OF 

Section   on    Reform    of   Civil  and 
Criminal  Procedure 


0.  K.  GUSHING 
BOUTWELL  DUNLAP 

1.  HARRIS 

BEVERLY  L.  HODGHEAD 
GRANT  H.  SMITH 
CURTIS  H.  LINDLEY,  ex  officio 
Members  of  Section 


Published  by  Authority  of  the  Association 


SAN  FRANCISCO 

The   Recorder  Printing  and  Publishing  Co. 
1910 


- 


Bar  Association  of  San  Francisco 


Report  of  Section  on  Reform  of 
Civil  and  Criminal  Procedure 


San  Francisco,  October  llth,  1910. 

HON.  CURTIS  H.  LINDLEY, 

President  Bar  Association  of  San  Francisco. 
Sir: 

The  section  of  the  Bar  Association  of  San  Francisco  on 
"Reform  of  Civil  and  Criminal  Procedure",  respectfully 
presents  the  following  report : 

CIVIL  PROCEDURE 

i. 

THE  PLEADINGS 

One  of  the  steps  in  an  action  where  much  delay  occurs  is 
in  bringing  the  cause  to  issue.  The  time  demurrer  is  a 
frequent  cause  of  delay.  We  believe  that  if  the  defendant 
were  required  to  answer  and  demur  at  the  same  time  no 
injustice  would  result  and,  on  the  other  hand,  we  think  the 
practice  of  raising  immaterial  points  by  demurrer,  which 
is  now  prevalent,  would  be  greatly  discouraged.  To  that 
end  we  recommend  the  following  amendments: 

Amend  Section  430  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows:  l 

SECTION  430.  The  defendant  may  demur  to  the  complaint 
within  the  time  required  in  the  summons  to  answer  and  may 
demur  and  answer  at  the  same  time.  If  the  defendant 
demurs  without  answering  he  shall  be  deemed  to  have 
waived  the  right  to  answer. 


205693 


4:  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

The  defendant  may  demur  to  the  complaint  when  it  ap- 
pears upon  the  face  thereof,  either: 

1.  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant,  or  the  subject  of  the  action; 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue; 

3.  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause; 

4.  That  there  is  a  defect  or  misjoinder  of  parties  plain- 
tiff or  defendant; 

5.  That  several  causes  of  action  have  been  improperly 
united,  or  not  separately  stated; 

6.  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

The  changes  consist  in 

(a) — Adding  the  words  '''and  may  demur  and  answer  at 
the  same  time",  which  are  taken  from  the  present  section  431. 

(b) — Adding  the  words  "If  the  defendant  demurs  with- 
out answering  he  shall  be  deemed  to  have  waived  the  right 
to  answer."  The  purpose  of  this  amendment  is  to  make  it 
incumbent  upon  the  defendant,  if  he  desires  both  to  demur 
and  answer,  to  do  so  at  the  same  time.  Under  the  present 
provisions  of  the  Code  the  defendant  may  demur  and  answer 
at  the  same  time  (section  431).  The  amendment  changes 
the  rule  so  that  if  there  be  a  demurrer  and  an  answer  they 
must  be  filed  together.  Of  course  the  defendant  may  answer 
without  demurring  and  may  demur  without  answering,  but 
in  the  latter  case  he  stands  or  falls  upon  his  demurrer.  If 
the  demurrer  be  sustained  and  the  complaint  be  amended  the 
defendant  can  then  proceed  de  novo  to  demur  and  answer 
together  or  answer  without  demurring,  etc.,  as  to  an  original 
complaint.  The  proposed  amendment  of  section  437  infra, 
permitting  answers  by  general  denial  to  all  complaints  will 
so  simplify  the  answer  that  it  will  be  as  easy  to  answer  as 
to  demur,  and  we  think  the  demurrer  will  then  be  restricted 
to  its  real  purpose  of  pointing  out  defects  in  the  complaint 
that  are  material.  Under  the  present  practice  the  defendant 
may  set  up  inconsistent  defenses  in  his  answer  and  he  does 
no  more  than  this  when  he  demurs  and  answers  at  the  same 
time.  Many  of  the  states  provide  that  the  defendant  may 
demur  and  answer  at  the  same  time  and  the  practice  con- 
templated by  the  proposed  amendment  now  prevails  in  Ari- 
zona (Rev.  Statutes,  1901,  section  1350)  and  Texas.  See 
Sayles'  Texas  Civil  Statutes,  1897,  article  1262,  which  reads 
as  follows: 


CIVIL   AND   CRIMINAL   PROCEDURE.  5 

The  defendant  in  his  answer  may  plead  as  many  several 
matters,  whether  of  law  or  fact,  as  he  shall  think  necessary 
for  his  defense,  and  which  may  be  pertinent  to  the  cause; 
provided  that  he  shall  file  them  all  at  the  same  time,  and 
in  due  order  of  pleading. 

The  Virginia  Code  of  1904,  section  3264,  provides: 

The  defendant  in  any  action  may  plead  as  many  several 
matters,  whether  of  law  or  fact,  as  he  shall  think  necessary, 
and  he  may  file  pleas  in  bar  at  the  same  time  with  pleas 
in  abatement,  or  within  a  reasonable  time  thereafter,  but  the 
issues  on  the  pleas  in  abatement  shall  be  first  tried. 

(c) — Striking  out  the  provisions  allowing  demurrer  on 
the  ground  of  ambiguity,  unintelligibility  and  uncertainty. 

We  think  these  provisions  are  not  of  real  value  and  that 
their  effect  is  to  unduly  delay  litigation  without  any  corre- 
sponding advantage.  Many  of  the  states  provide  that  there 
shall  be  no  special  demurrers. 

Florida,  General  Statutes,  1906,  section  1430; 
Maryland,  Public  General  Laws,  page  1633,  article  75, 

section  6 ; 

Mississippi,  Code  1906,  section  761; 
New  Jersey,  General  Statutes,  page  2557,  section  139; 
New  York,  Stover 's  Annotated  Code  of  Civil  Procedure, 

1902,  section  488. 

Amend  Section  431  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  431.  The  demurrer  must  distinctly  specify  the 
grounds  upon  which  any  of  the  objections  to  the  complaint 
are  taken.  Unless  it  does  so,  it  may  be  disregarded.  It 
may  be  taken  to  the  whole  complaint  or  to  any  of  the  causes 
of  action  stated  therein. 

The  amendment  strikes  out  the  words  "and  the  defend- 
ant may  demur  and  answer  at  the  same  time"  as  they  have 
been  transferred  to  section  430  supra. 

Amend  Section  437  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  437.    The  answer  of  defendant  shall  contain: 

1.  A  general  or  specific  denial  of  the  material  allegations 
of  the  complaint  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  defense 
or  counterclaim. 


6  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

If  the  defendant  has  no  information  or  belief  upon  the 
subject  sufficient  to  enable  him  to  answer  an  allegation  of 
the  complaint,  he  may  so  state  in  his  answer  and  place  his 
denial  upon  that  ground. 

The  change  consists  in  striking  out  of  the  present  section 
the  provisions  which  make  different  rules  for  denying  veri- 
fied and  unverified  complaints. 

The  purpose  of  the  amendment  is  to  make  specific  denials 
unnecessary  so  that  a  general  denial  may  be  made  in  every 
case.  The  rule  requiring  the  answer  to  be  verified  where 
the  complaint  is  verified  is,  of  course,  not  changed,  and  under 
the  amended  section  the  defendant  cannot  properly  deny 
allegations  of  a  verified  complaint  which  he  cannot  deny 
under  oath. 

We  find  that  California  and  Oregon,  Nevada  and  Idaho, 
which  have  patterned  after  her,  are  practically  alone  in  re- 
quiring specific  denials. 

The  advantage  of  the  general  denial  is  tersely  stated  in 
Stone  v.  Quaal,  29  N.  W.  326,  Minn.,  as  follows: 

"A  general  denial  is  used  instead  of  specific  denials  as 
a  matter  of  convenience  and  has  that  consideration  to  com- 
mend it  ...  in  effect  it  is  precisely  the  same  as  if  each 
of  the  allegations  so  denied  were  specifically  and  separately 
referred  to  and  denied.  It  is  of  no  greater  and  no  less 
effect." 

Amend  Section  444  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  444.  The  demurrer  may  be  taken  upon  one  or 
more  of  the  following  grounds: 

1.  That   several  causes   of  counterclaim  have   been   im- 
properly joined,  or  not  separately  stated; 

2.  That   the   answer   does   not   state   facts   sufficient   to 
constitute  a  defense  or  counterclaim. 

This  amendment  strikes  out  the  provisions  for  demurring 
to  an  answer  on  the  grounds  of  ambiguity,  unintelligibility 
and  uncertainty  to  make  the  section  conform  to  section  430 
supra. 

Amend  Section  472  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  472.  Any  pleading  may  be  amended  once  by  the 
party  of  course,  and  without  costs,  at  any  time  before  answer 


CIVIL    AND    CRIMINAL    PROCEDURE.  7 

or  demurrer  filed,  or  after  demurrer  and  before  the  trial 
of  the  issue  of  law  thereon,  by  filing  the  same  as  amended 
and  serving  a  copy  on  the  adverse  party,  who  may  have  ten 
days  thereafter  in  which  to  answer  or  demur  to  the 
amended  pleading.  A  demurrer  is  not  waived  by  filing  an 
answer  at  the  same  time.  If  a  demurrer  to  the  answer  be 
overruled,  the  facts  alleged  in  the  answer  must  be  con- 
sidered as  denied,  to  the  extent  mentioned  in  section  four 
hundred  and  sixty-two. 

The  amendment  strikes  out  the  words  now  in  the  section 
"and  when  the  demurrer  to  a  complaint  is  overruled  and 
there  is  no  answer  filed,  the  court  may,  upon  such  terms  as 
may  be  just,  allow  an  answer  to  be  filed."  This  is  to 
harmonize  the  section  with  section  430  supra. 

Amend  Section  476  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  476.  When  a  demurrer  to  any  pleading  is  sus- 
tained and  time  to  amend  is  given,  the  time  so  given  runs 
from  the  service  of  notice  of  the  decision  or  order. 

This  amendment  omits  the  provision  with  respect  to  giv- 
ing time  to  answer  when  a  demurrer  is  overruled  so  as  to 
bring  it  in  line  with  section  430  supra. 


II. 

EXCEPTIONS 

Under  the  present  practice  it  is  sometimes  necessary  to 
serve  bills  of  exceptions,  notices,  etc.,  upon  a  party  in  de- 
fault. This,  we  think,  should  never  be  required.  A  party 
who  has  been  duly  brought  into  court  and  has  defaulted 
should  never  be  heard  to  complain  of  any  relief  that  is  given 
to  his  opponent  so  long  as  the  pleadings  have  not  been 
amended.  We  therefore  recommend  that 

Section  650  of  the  Code  of  Civil  Procedure  Be  Amended  so 
as  to  Read  as  Follows: 

SECTION  650.  When  a  party  desires  to  have  exceptions 
taken  at  a  trial  settled  in  a  bill  of  exceptions,  he  may,  at 
any  time  thereafter,  and  within  ten  days  after  the  entry 
of  judgment,  if  the  action  was  tried  with  a  jury,  or  after 
receiving  notice  of  the  entry  of  judgment,  if  the  action  was 


8  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

tried  without  a  jury,  or  such  further  time  as  the  court  in 
which  the  action  is  pending,  or  a  judge  thereof,  may  allow, 
prepare  the  draft  of  a  bill,  and  serve  the  same,  or  a  copy 
thereof,  upon  the  adverse  party;  but  the  bill  need  not  be 
served  upon  any  party  whose  default  has  been  duly  entered. 
Such  draft  must  contain  all  the  exceptions  and  proceedings 
taken  upon  which  the  party  relies.  It  may  also  contain  a 
statement  of  any  matters  occurring  upon  the  trial,  in  the 
presence  of  the  court,  showing  any  of  the  matters  men- 
tioned in  subdivisions  one  and  two  of  section  six  hundred 
and  fifty-seven  of  this  code.  Within  ten  days  after  such 
service  the  adverse  party  may  propose  amendments  thereto, 
and  serve  the  same,  or  a  copy  thereof,  upon  the  other  party. 
The  proposed  bill  and  amendments  must,  within  ten  days 
thereafter  be  presented  by  the  party  seeking  the  settlement 
of  the  bill,  to  the  judge  who  tried  or  heard  the  case,  upon 
five  days'  notice  to  the  adverse  party,  or  be  delivered  to  the 
clerk  of  the  court  for  the  judge.  When  received  by  the 
clerk  he  must  immediately  deliver  them  to  the  judge,  if 
he  is  in  the  county;  if  he  is  absent  from  the  county,  and 
either  party  desires  the  paper  to  be  forwarded  to  the  judge, 
the  clerk  must,  upon  notice  in  writing  of  such  party,  im- 
mediately forward  them  by  mail,  or  other  safe  channel;  if 
not  thus  forwarded  the  clerk  must  deliver  them  to  the 
judge  immediately  after  his  return  to  the  county.  When 
received  from  the  clerk,  the  judge  must  designate  the  time 
at  which  he  will  settle  the  bill,  and  the  clerk  must  im- 
mediately notify  the  parties  of  such  designation.  At  the 
time  designated  the  judge  must  settle  the  bill.  The  bill 
must  thereupon  be  engrossed  and  presented  to  the  judge 
to  be  certified,  by  the  party  presenting  it,  within  ten  days. 
If  the  action  was  tried  before  a  referee,  the  proposed  bill, 
with  the  amendments,  if  any,  must  be  presented  to  such 
referee  for  settlement  within  ten  days  after  service  of  the 
amendments,  upon  notice  of  five  days  to  the  adverse  party, 
and  thereupon  the  referee  must  settle  the  bill.  If  no 
amendments  are  served  or  if  served  are  allowed,  the  pro- 
posd  bill  may  be  presented,  with  the  amendments,  if  any, 
to  the  judge  or  referee,  for  settlement  without  notice  to 
the  adverse  party. 

It  is  the  duty  of  the  judge  or  referee,  in  settling  the  bill, 
to  strike  out  of  it  all  redundant  and  useless  matter  so  that 
the  exceptions  and  proceedings  may  be  presented  as  briefly 
as  possible.  When  settled,  the  bill  must  be  signed  by  the 
judge  or  referee,  with  his  certificate  to  the  effect  that  the 
same  is  allowed,  and  must  then  be  filed  with  the  clerk. 

The  amendment  consists  in  the  addition  of  the  provision: 
"but  the  bill  need  not  be  served  upon  any  party  whose  de- 
fault has  been  duly  entered."  This  amendment  makes  the 
definition  of  the  " adverse  party"  conform  to  that  in  section 
659  of  the  Code  of  Civil  Procedure  as  proposed  infra.  The 


CIVIL  AND  CRIMINAL  PROCEDURE.  9 

reasons  for  the  amendment  are  shown  under  that  section. 
It  has  been  held  that  the  "adverse  party"  in  section  650 
means  every  party  whose  interest  in  the  subject-matter  of 
the  appeal  is  adverse  to,  or  will  be  affected  by  a  reversal  or 
modification  of,  the  judgment  or  order  from  which  the  appeal 
is  taken. 

Estate  of  Young,  149  Cal.  173,  and  cases  cited. 
III. 

NEW  TRIALS 

We  believe  that  the  present  procedure  on  motion  for  new 
trial  is  a  cause  of  much  delay  in  litigation  and  to  that  end 
we  recommend  the  following  amendments  designed  to  simplify 
the  practice: 

Amend  Section  658  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  658.  When  the  application  is  made  for  a  cause 
mentioned  in  the  first,  second,  third  and  fourth  subdivisions 
of  the  last  section,  it  must  be  made  upon  affidavits;  for 
any  other  cause  it  must  be  made  upon  the  minutes  of  the 
court. 

The  amendment  strikes  out  of  the  present  section  the  pro- 
visions for  moving  upon  a  bill  of  exceptions  or  statement  of 
the  case.  In  other  words,  under  the  proposed  section,  the 
motion  can  be  made  only  upon  affidavits  or  the  minutes  of 
the  court. 

In  practice,  under  the  present  code,  the  motion  for  a  new 
trial  is  seldom  made  on  the  minutes  of  the  court. 

In  Malcolm-son  v.  Harris,  90  Cal.  262,  the  supreme  court, 
referring  to  sections  658,  659,  660  and  661  of  the  Code  of 
Civil  Procedure,  said: 

"By  these  various  provisions  a  very  simple,  plain,  and 
expeditious  practice  is  prescribed,  by  which  the  trouble, 
expense  and  delay  of  settling  statements  or  bills  of  ex- 
ceptions may  be  entirely  avoided  in  all  that  large  class  of 
cases  in  which  the  order  of  the  trial  judge  granting  or 
denying  a  new  trial  is  accepted  as  final,  as  it  always  must 
be — so  far  as  the  ground  we  are  considering  is  concerned — 
when  there  is  a  substantial  conflict  of  evidence.  And  even 


10  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

where  the  losing  party  wishes  to  appeal,  it  will  generally 
be  easier  and  more  convenient  to  make  a  statement  after 
than  before  the  order ;  for  the  argument  of  the  motion  will 
generally  eliminate  many  of  the  points,  as  its  decision  will 
always  do  away  with  the  necessity  of  setting  out  evidence 
upon  points  as  to  which  there  is  an  admitted  conflict. 
The  wonder  is,  that  a  practice  so  convenient,  so  saving  of 
time,  trouble  and  expense,  is  so  little  resorted  to." 

The  foregoing  language  was  referred  to  with  approval  in 
Vinson  v.  L.  A.  etc.  Co.,  141  Cal.  153,  where  the  court  again 
commended  the  practice  of  moving  upon  the  minutes  of  the 
court. 

As  will  be  seen,  the  principal  changes  which  we  propose 
in  the  existing  law  consist  in  the  elimination  of  two  of  the 
four  ways  upon  which  a  motion  for  new  trial  may  now  be 
made,  leaving,  however,  the  procedure  described  by  the  su- 
preme court  as  "a  very  simple,  plain  and  expeditious  prac- 
tice." 

Under  the  existing  practice  the  motion  for  new  trial  is 
usually  made  upon  a  bill  of  exceptions  or  a  statement  of  the 
case  and  the  delay  in  preparing  these  documents  is  very 
great.  By  the  time  the  bill  of  exceptions  or  statement  is 
settled  and  engrossed  so  that  the  matter  can  be  brought  to 
hearing,  it  is  necessary  for  counsel  upon  both  sides  again  to 
prepare  upon  the  law,  and  any  study  that  the  judge  may 
have  given  to  the  matter  at  the  time  of  the  trial  has  probably 
faded  from  his  memory  under  the  pressure  of  other  matters. 

If  the  motion  be  made  upon  the  minutes  of  the  court,  there 
is  ordinarily  no  reason  why  it  cannot  be  brought  to  hearing 
within  a  few  days  after  the  trial,  when  the  law  and  the  facts 
are  fresh  in  the  minds  of  all  concerned.  Where  the  motion 
is  made  upon  the  ground  of  insufficiency  of  the  evidence  to 
justify  the  verdict  or  decision,  if  the  evidence  be  conflicting, 
it  is  useless  to  ask  the  appellate  court  to  review  the  action  of 
the  trial  court  on  the  motion  and  the  bill  of  exceptions  pre-: 
pared  after  the  motion  is  heard  will,  in  all  such  cases,  be 
much  shorter  than  if  prepared  beforehand,  thus  saving  time 
and  expense. 

The  statement  of  the  case  seems  to  be  something  entirely 
unnecessary  in  our  system  of  practice  and  its  only  tendency 
has  been  to  add  to  the  difficulty  of  practice  and  to  make  for 
confusion.  This  is  illustrated  in  Pease  v.  Fink,  3  Cal.  App. 
377,  where  the  point  was  made  that  the  appeal  from  the 


CIVIL    AND    CRIMINAL    PROCEDUR 


order  denying  a  new  trial  could  not  be  considered,  for  the 
reason  that  in  the  notice  of  intention  therefor  the  defendant 
stated  that  it  would  be  made  upon  affidavits  and  a  bill  of 
exceptions  thereafter  to  be  prepared  and  settled,  whereas  the 
document  set  forth  in  the  transcript  is  entitled:  "Engrossed 
Statement  of  the  Case. ' '  The  court  said : 

"The  procedure  for  obtaining  a  new  trial,  authorized  by 
section  659  (2)  of  the  Code  of  Civil  Procedure,  implies  that 
a  bill  of  exceptions  may  have  been  settled  before  notice  of 
the  motion  shall  have  been  given,  and  that  in  such  case 
the  bill  shall  be  used  on  that  motion.  If,  however,  no  bill 
has  been  settled,  the  same  procedure  is  prescribed  for  its 
settlement  as  for  the  settlement  of  a  statement  of  the  case. 
There  is  no  substantial  difference  between  the  two  docu- 
ments when  settled;  the  only  difference  being  that  in  a 
statement  of  the  case  the  moving  party,  in  addition  to 
setting  forth  in  the  body  of  the  document,  the  exceptions 
which  were  taken  at  the  trial,  must  also  specify  the  par- 
ticular ones  upon  which  he  relies  in  support  of  his  motion." 

Amend  Section  659  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  659.  The  party  intending  to  move  for  a  new 
trial  must,  within  ten  days  after  the  entry  of  judgment, 
if  the  action  was  tried  with  a  jury,  or  after  receiving 
notice  of  the  entry  of  the  judgment,  if  the  action  was 
tried  without  a  jury,  file  with  the  clerk  and  serve  upon  the 
adverse  party  a  notice  of  his  intention,  designating  the 
grounds  upon  which  the  motion  will  be  made,  and  whether 
the  same  will  be  made  upon  affidavits,  or  the  minutes  of 
the  court;  but  no  notice  need  be  served  upon  any  party 
whose  default  has  been  duly  entered. 

If  the  motion  is  to  be  made  upon  affidavits,  the  moving 
party  must,  within  ten  days  after  serving  the  notice,  file 
such  affidavits  with  the  clerk,  and  serve  a  copy  upon  the 
adverse  party,  who  shall  have  ten  days  to  file  counter- 
affidavits,  a  copy  of  which  must  be  served  upon  the  moving 
party. 

It   shall   be   sufficient   in   assigning   the  grounds   of  the 
motion  to  assign  the  same  in  the  language  of  the  statute 
and  without  further  or  other  particularity. 
The  changes  consist  in 

(a) — Making  the  ten  days  run  as  provided  in  section  650. 

(b) — Adding  the  provision  at  the  end  of  the  first  para- 
graph that  no  notice  need  be  served  upon  any  party  whose 
default  has  been  duly  entered. 


12  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

This  provision  is  inserted  so  as  to  make  it  unnecessary  to 
serve  the  notice  of  intention  to  move  for  a  new  trial  upon 
any  party  who  has  defaulted,  whether  such  party  be  adverse 
or  not. 

In  the  matter  of  Castle  Dome  Mining  etc.  Co.,  79  Cal.  246, 
it  was  held  that  upon  an  appeal  taken  by  petitioning  creditors 
from  an  order  dismissing  a  proceeding  in  insolvency  against 
a  foreign  corporation  for  alleged  want  of  jurisdiction,  though 
the  corporation  made  default,  and  the  controversy  was  be- 
tween the  petitioning  creditors  and  attaching  creditors  of 
the  corporation,  the  notice  of  appeal  must  be  served  upon 
the  corporation  as  well  as  upon  the  attaching  creditors,  in 
order  to  give  the  supreme  court  jurisdiction  of  the  appeal, 
since  the  judgment  was  in  favor  of  the  corporation  and  a 
reversal  would  affect  its  rights. 

This  case  has  been  repeatedly  cited  and  followed  and 
though  the  question  in  that  case  related  to  the  service  of 
notice  of  appeal  the  same  rule  seems  to  have  been  applied 
with  respect  to  service  of  notice  of  intention  to  move  for  a 
Dew  trial. 

In  Johnson  v.  Phenix  Insurance  Company,  146  Cal.  571, 
the  defendant,  Bank  of  San  Mateo  County,  apparently  did 
not  answer,  demur  or  give  written  notice  of  appearance  (see 
foot  of  page  573).  The  notice  of  appeal  and  notice  of  in- 
tention to  move  for  a  new  trial  were  not  served  upon  the 
bank.  For  this  reason  the  appeal  from  the  judgment  was 
dismissed  and  when  the  case  came  up  for  consideration  on 
the  merits,  152  Cal.  196,  the  order  denying  a  new  trial  was 
affirmed  on  the  ground  that  the  bank  was  an  adverse  party 
and  should  have  been  served  with  the  notice  of  intention. 

The  court  said: 

"Section  659  of  the  Code  of  Civil  Procedure,  however, 
requires  that  the  party  intending  to  move  for  a  new  trial 
shall  'serve  upon  the  adverse  party  a  notice  of  his  intention'. 
The  'adverse  party'  upon  whom  this  notice  is  to  he  served 
is  determined  by  the  same  rules  as  is  the  'adverse  party' 
upon  whom  a  notice  of  appeal  is  to  he  served,  viz.,  every 
party  whose  interest  in  the  subject-matter  of  the  motion 
is  adverse  to  or  will  be  affected  by  the  granting  of  the 
motion  or  changing  the  former  decision  of  the  court;  and 
a  failure  to  serve  such  adverse  party  with  the  notice  of  an 
intention  to  move  for  a  new  trial  will  be  attended  with 
the  same  consequences  as  a  failure  to  serve  an  adverse 
party  with  a  notice  of  appeal  from  the  judgment.  The 
superior  court  can  have  no  jurisdiction  to  re-examine  an 


CIVIL    AND    CRIMINAL    PROCEDURE.  13 

issue  of  fact  that  it  has  tried,  and  change  its  decision 
thereon,  unless  all  the  parties  to  the  issue  and  former 
decision  are  properly  before  it.  See  also,  Barnliart  v. 
Fulkerth,  92  Cal.  155  [26  Pac.  221];  In  re  Ryer,  110  Cal. 
556,  559  [42  Pac.  1082];  Estate  of  Young,  149  Cal.  173  [85 
Pac.  145].)" 

(c) — Striking  out  the  words  "or  such  further  time  as  the 
court  in  which  the  action  is  pending,  or  a  judgment  thereof, 
may  allow ' ',  so  as  to  make  the  same  rule  for  original  and  reply 
affidavits. 

(d) — Striking  out  the  provisions  regarding  statements  and 
bills  of  exceptions. 

What  has  already  been  said  in  explanation  of  the  amend- 
ment of  section  658  covers  the  proposed  amendment  of  sec- 
tion 659  in  this  respect. 

The  present  section  contains  a  provision  at  the  end  of 
paragraph  second,  reading :  "  If  a  bill  of  exceptions  has  been 
already  settled  and  filed,  when  the  notice  of  motion  is  given, 
such  bill  shall  be  used  on  the  motion."  This  paragraph  we 
have  incorporated  in  section  660,  hereinafter  referred  to,  so 
that  in  moving  for  a  new  trial  upon  the  minutes  of  the  court 
any  bill  of  exceptions  that  may  have  been  settled  during  the 
trial  of  the  cause  may  be  used  and  referred  to  upon  the  hear- 
ing of  the  motion. 

(e) — Changing  the  rule  requiring  the  notice  of  motion 
to  specify  the  particulars  in  which  the  evidence  is  insufficient 
and  the  particular  errors  upon  which  the  party  will  rely. 

Under  the  proposed  amendment  a  specification  in  the  lan- 
guage of  the  statute  will  be  sufficient.  This  we  find  to  be 
the  practice  in  many  of  the  states  and  as,  under  the  procedure 
contemplated  by  the  amendment,  the  motion  for  a  new  trial 
will  ordinarily  be  made  very  shortly  after  the  case  has  been 
tried,  it  would  seem  proper  that  the  whole  matter  of  the  trial 
should  be  subject  to  review  by  the  trial  court.  When  the 
bill  of  exceptions  is  prepared  it  will,  of  course,  show  the 
errors  to  be  brought  to  the  attention  of  the  upper  court  for 
review. 

We  find  this  practice  established  by  statute  in 

Utah,  Code  of  Civil  Procedure,  sec.  3293 ; 
Nebraska,  Cobbey's  Annotated  Statutes,  1909,  sec.  1302; 
Washington,  Remington  &  Ballinger's  Code,  1910,  sec. 
400. 


14  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

Amend  Section  660  of  the  Code  of  Civil  Procedure  so  as  to 
Bead  as  Follows: 

SECTION  660.  The  application  for  a  new  trial  must  be 
heard  at  the  earliest  practicable  period  after  notice  of  the 
motion,  if  the  motion  is  to  be  heard  upon  the  minutes  of 
the  court,  and  in  other  cases  after  the  affidavits  are  filed, 
and  may  be  brought  to  hearing  upon  motion  of  either  party. 
On  such  hearing  reference  may  be  had  in  all  cases  to  the 
pleadings  and  orders  of  the  court  on  file,  and  when  the 
motion  is  made  on  the  minutes,  reference  may  also  be  had 
to  any  depositions  and  documentary  evidence  offered  at  the 
trial,  to  oral  testimony  adduced  at  the  trial,  to  rulings  made 
by  the  court  or  referee  and  to  the  report  of  the  proceedings 
on  the  trial  taken  by  the  phonographic  reporter  or  to  any 
certified  transcript  of  such  report.  If  a  bill  of  exceptions 
has  been  already  settled  and  filed  when  the  notice  of 
motion  is  given  reference  may  also  be  had  to  such  bill. 

In  Malcolmson  v.  Harris,  90  Cal.  262,  it  was  held  by  the 
court  that  the  enumeration  in  section  660  of  the  Code  of  Civil 
Procedure  of  the  matters  to  which  reference  may  be  had  on 
the  hearing  of  the  motion  and  the  minutes  of  the  court,  is 
not  necessarily  exclusive  and  the  court  said,  page  265 : 

"The  mere  fact  that  there  is  no  shorthand  report  of  the 
trial  ought  not  to  be  held  to  deprive  the  losing  party  of  the 
privilege  of  moving  for  a  new  trial  in  the  speediest  and 
most  convenient  mode  prescribed  by  the  statute,  unless  its 
terms  are  such  as  to  admit  of  no  doubt  that  such  was  the 
intention  of  the  legislature.  We  think  the  law  demands 
no  such  construction;  the  enumeration  in  section  660  is 
not  necessarily  exclusive,  and  it  is  contrary  to  all  con- 
•  siderations  of  justice  and  convenience  to  hold  that  it  was 
intended  to  be.  That  a  judge  may  and  must  consider  on  a 
motion  for  a  new  trial,  made  in  advance  of  a  statement,  all 
evidence  material  to  the  grounds  and  specifications  of  the 
notice,  whether  reported  or  not,  is  something  which  the 
legislature  may  well  have  deemed  too  obvious  to  call  for 
express  enactment." 

In  view  of  this  decision  it  may  be  said  that  the  amend- 
ment adding  certain  matters  that  may  be  referred  to  upon 
the  hearing  of  the  motion  is  unnecessary,  but  we  have  made 
the  addition  as  a  matter  of  precaution,  lest  it  be  urged  that 
the  amendment  of  the  statute,  after  the  decision  of  the  Harris 
case,  without  change  in  this  respect,  would  require  the  con- 
struction that  the  amended  statute  is  now  exclusive. 


AND  CRIMINAL  PROCEDURE.  15 


Amend  Section  661  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  661.  The  affidavits,  authenticated  as  having  been 
used  on  the  hearing,  by  the  certificate  of  the  judge  in- 
dorsed thereon,  together  with  the  judgment-roll  and  a  copy 
of  the  order  made,  shall  constitute  the  record  to  be  used 
on  appeal  from  the  order  granting  or  refusing  a  new  trial, 
when  the  motion  is  made  upon  affidavits.  When  the  motion 
is  made  on  the  minutes  of  the  court,  the  judgment-roll  with 
a  copy  of  the  order  made  and  a  bill  of  exceptions  shall  con- 
stitute the  record  on  appeal.  Such  bill  of  exceptions  shall 
be  proposed  within  ten  days  after  the  entry  of  the  order 
and  shall  be  settled  as  provided  by  section  six  hundred  and 
fifty. 

The  reasons  for  the  changes  in  the  foregoing  section  are 
as  follows: 

(a) — Under  the  law  as  it  now  exists,  if  a  motion  for  a 
new  trial  is  made  upon  affidavits,  it  is  necessary,  after  the 
determination  of  the  motion,  for  the  losing  party  to  prepare 
a  bill  of  exceptions  in  order  to  bring  the  affidavits  before  the 
appellate  court. 

Somers  v.  Somers,  81  Cal.  608; 
People  v.  TerriU,  131  Cal.  114. 

It  seems  that  the  present  practice  arose  from  the  fact  that 
section  661  makes  no  provision  for  authentication  of  affidavits 
whereas  the  old  practice  act  did  make  such  provision. 
See  Statutes  of  1861,  page  590. 

We  think  the  affidavits  used  on  motion  for  a  new  trial 
can  be  properly  authenticated  by  the  certificate  of  the  trial 
judge  endorsed  thereon,  just  as  well  as  by  a  bill  of  exceptions, 
and  this  practice  will  occasion  no  delay  in  cases  where  the 
motion  is  made  upon  affidavits,  whereas,  if  a  bill  of  exceptions 
is  necessary,  delay  will  be  unavoidable. 

(b) — We  have  provided  that,  where  the  motion  is  made 
upon  the  minutes  of  the  court,  the  party  desiring  to  appeal 
shall  prepare  a  bill  of  exceptions  and  that  the  bill  shall  be 
prepared  as  provided  in  section  650  of  the  Code  of  Civil 
Procedure.  The  present  statute  provides  that  a  statement 
shall  be  prepared  and  that  the  proceedings  in  preparing  the 
same  shall  be  had,  and  within  like  periods,  for  the  settlement 
of  the  statement  as  provided  by  section  659.  Upon  referring 
to  section  659  we  find  that  the  proceedings  are  partially 


16  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

described  and  are  then  to  be  carried  011  as  provided  by  sec- 
tion 650.  As  all  of  the  machinery  for  the  preparation  of 
statements  and  bills  of  exceptions  set  forth  in  section  659 
has  been  eliminated  by  our  proposed  amendment,  we  think 
the  entire  practice  should  be  assimilated  to  that  set  forth  in 
section  650  so  that  there  may  be  but  one  rule  for  the  prepara- 
tion of  bills  of  exceptions  in  all  cases. 

(c) — The  section  as  it  now  stands  provides  that  the  state- 
ment shall  only  contain  the  grounds  argued  before  the  court 
for  a  new  trial  and  so  much  of  the  evidence  or  other  matter 
as  may  be  necessary  to  explain  them.  This  language  has  been 
omitted  from  the  proposed  section  for  the  reason  that  section 
950  of  the  Code  of  Civil  Procedure  provides  that  any  state- 
ment settled  after  decision  of  motion  for  a  new  trial,  wheu 
the  motion  is  made  upon  the  minutes  of  the  court,  may  be 
used  on  appeal  from  a  final  judgment  equally  as  upon  appeal 
from  the  order  granting  or  refusing  the  new  trial.  The 
amendment  aims  to  make  it  possible  to  so  prepare  the  bill  of 
exceptions  that  it  may  cover  all  matters  to  be  used  on  either 
appeal. 

An  examination  of  the  statutes  of  several  states  regarding 
motion  for  new  trial  shows  that  the  present  California  law 
is  more  complex  and  goes  more  into  detail  than  that  of  any 
state  whose  law  we  have  examined,  except  such  states  as  have 
followed  the  California  law,  notably,  Montana,  Idaho,  Ne- 
vada, North  Dakota  and  South  Dakota.  Utah  formerly  had 
the  California  practice.  In  1898  it  adopted  the  simple  pro- 
cedure that  we  here  recommend  and  which  has  been  found 
to  work  there  most  admirably.  The  laws  of  many  of  the 
states  are  most  general,  some  of  them  providing  practically 
no  procedure,  but  apparently  leaving  the  matter  to  rules  of 
court  or  to  the  general  law  regarding  exceptions. 

In  Kansas  it  is  provided:  "The  application  must  be  by 
motion  upon  written  grounds  filed  at  the  time  of  making  the 
motion.  The  causes  enumerated  in  subdivisions  3  and  7  of 
section  306  must  be  sustained  by  affidavits  showing  their 
truth  and  may  be  controverted  by  affidavits." 

Kansas  General  Statutes,  1905,  sectioii  5205. 

The  Kansas  law  is  substantially  the  same  as  that  of  Iowa, 
Indiana,  Nebraska,  Ohio,  Oklahoma  and  Wyoming. 
Iowa,  Annotated  Code,  1897,  section  3756; 
Indiana,  Burns'  Annotated  Statutes,  Revision  of  1908, 
section  588; 


CIVIL    AND    CRIMINAL    PROCEDURE.  17 

Nebraska,  Cobbey's  Annotated  Statutes,  1909,  vol.  I, 
sections  1299  and  1302 ; 

Ohio,  Bates'  Annotated  Ohio  Statutes,  1906,  sections 
5305-5309 ; 

Oklahoma,  Revised  and  Annotated  Statutes,  1903,  sec- 
tions 4493-4497 ; 

Wyoming,  Revised  Statutes.  1899,  sections  3746-3750. 

Other  laws  dealing  with  the  same  subject  will  be  found  in 

Colorado,  Mills'  Annotated  Code,  1905,  section  219; 

Connecticut,  General  Laws,  Revision  1902,  section  815 ; 

Minnesota,  Revised  Laws,  1905,  section  4199 ; 

Missouri.  Annotated  Statutes, '  1906,  sections  800-803; 

New  York,  Stover 's  Annotated  Code  of  Civil  Procedure, 
1902,  section  999 ; 

North  Carolina,  Pell's  Revisal,  1908,  section  554; 

South  Carolina,  Code  1902,  section  2734; 

Washington,  Remington  &  Ballinger's  Codes  and  Stat- 
utes, 1910,  sections  398-403 ; 

Wisconsin,  Sanborn  &  Berryman's  Statutes,  1898,  and 
Supplement,  1899-1906  (Sanborn  &  Sanborn),  sec- 
tions 2878-2880. 

IV. 

APPEALS 

Amend  Section  940  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  940.  An  appeal  is  taken  by  filing  with  the  clerk 
of  the  court  in  which  the  judgment  or  order  appealed  from 
is  entered,  a  notice  stating  the  appeal  from  the  same,  or 
some  specific  part  thereof,  and  serving  a  similar  notice  on 
the  adverse  party,  or  his  attorney,  but  no  notice  need  be 
served  upon  any  party  whose  default  has  been  duly  entered. 

The  change  consists  in: 

(a) — Inserting  the  provision  that  "no  notice  need  be 
served  upon  any  party  whose  default  has  been  duly  entered ", 
to  make  the  section  conform  to  the  proposed  amendment  of 
sections  650  and  659,  supra. 

(b) — Striking  out  the  present  provision  of  the  section 
requiring  the  $300.00  undertaking. 

We  think  it  is  generally  recognized  by  the  bench  and  bar 


18  BAR  ASSOCIATION  OP  SAN  FRANCISCO. 

that  this  undertaking  is  practically  useless.  More  time  has 
[been  wasted  by  court  and  counsel  in  considering  the  effect 
of  this  requirement  of  the  law  than  could  be  paid  for  by  the 
moneys  that  have  been  collected  under  it.  No  undertaking  is 
required  under  the  alternative  method  of  appeal  provided 
for  in  sections  941a  et  seq.,  enacted  in  1907,  and  the  two 
methods  of  appeal  should  be  harmonized  in  this  respect. 

The  adoption  of  this  amendment  will  make  necessary  the 
repeal  of  section  941  and  the  amendment  of  sections  947,  948 
and  949  so  as  to  strike  out  the  references  therein  to  the 
$300.00  undertaking. 

Amend  Section  950  of  the  Code  of  Civil  Procedure  so  as  to 
Read  as  Follows: 

SECTION  950.  On  an  appeal  from  a  final  judgment,  the  ap- 
pellant must  furnish  the  court  with  a  copy  of  the  notice 
of  appeal,  of  the  judgment  roll,  and  of  any  bill  of  exceptions 
upon  which  the  appellant  relies. 

Any  bill  of  exceptions  settled  after  decision  of  motion  for 
a  new  trial,  when  the  motion  is  made  upon  the  minutes 
of  the  court,  as  provided  in  section  661,  or  any  bill  of  ex- 
ceptions settled,  as  provided  in  section  649  or  section  650, 
or  used  on  motion  for  a  new  trial  may  be  used  on  appeal 
from  a  final  judgment  equally  as  upon  the  appeal  from  the 
order  granting  or  refusing  the  new  trial. 

The  amendment  consists  in  eliminating  the  reference  to 
statements  used  on  motion  for  new  trial,  to  make  the  section 
conform  to  the  proposed  amendments  to  sections  658  et  seq., 
supra. 


CRIMINAL  PROCEDURE 


We  recommend  the  following  amendments  to  the  Penal 
Code: 

I. 

THE  GRAND  JURY 

Amend  Sections  894  and  895  of  the  Penal  Code  so  as  to 
Read  as  Follows : 

SECTION  894.  Before  accepting  a  person  drawn  as  a  grand 
juror,  the  court  must  be  satisfied  that  such  person  is  duly 
qualified  to  act  as  such  juror,  but  when  drawn  and  found 
qualified  he  must  be  accepted  unless  the  court,  on  the  appli- 
cation of  the  juror  and  before  he  is  sworn,  shall  excuse  him 
from  such  service  for  any  of  the  reasons  prescribed  in  Chap- 
ter I,  Title  III,  Part  I  (Sections  190-254)  of  the  Code  of 
Civil  Procedure. 

SECTION  895.  No  challenge  shall  be  made  or  allowed  to 
the  panel  from  which  the  grand  jury  is  drawn,  nor  to  an 
individual  grand  juror,  unless  when  made  by  the  court  for 
want  of  qualification,  as  prescribed  in  the  next  preceding 
section. 

The  adoption  of  this  law  will  necessitate  the  repeal  of  sec- 
tions 164  and  896-901  inclusive,  and  the  amendment  of  section 
995  of  the  Penal  Code. 

The  proposed  statute  is  taken  from  the  Oregon  Statute, 
sections  1268,  1269,  Ballinger  &  Cotton's  Code. 

The  constitutionality  of  the  Oregon  act  was  passed  upon 
and  sustained  in  State  v.  Carlson,  62  Pac.  1016. 

See,  also,  People  v.  Arnold,  15  Cal.  476. 

The  object  of  the  proposed  change  is  to  do  away  with 
long  investigations  at  the  instance  of  indicted  persons  regard- 
ing the  qualifications  of  grand  jurors.  We  believe  such  pro- 
cedure generally  results  in  no  advantage  to  the  defendant ;  it  is 
expensive  to  the  state  and  brings  the  administration  of  crimi- 
nal law  into  disrepute. 


20  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

II. 

AMENDMENTS 

Amend  Section  1008  of  the  Penal  Code  so  as  to  Read  as 

Follows : 

SECTION  1008.  An  indictment  or  information  may  be 
amended  by  the  district  attorney  without  leave  of  court,  at 
any  time  before  the  defendant  pleads.  Such  amendment  may 
be  made  at  any  time  thereafter,  in  the  discretion  of  the 
court  (or  by  leave  of  court)  where  it  can  be  done  without 
prejudice  to  the  substantial  rights  of  the  defendant.  An 
indictment  cannot  be  amended  so  as  to  change  the  offense 
charged,  nor  an  information  so  as  to  charge  an  offense 
not  shown  by  the  evidence  taken  at  the  preliminary  exami- 
nation. 

If  a  demurrer  is  sustained,  and  an  amendment  is  not  al- 
lowed, or  if  allowed,  is  not  made,  the  court  shall  give  a  judg- 
ment of  dismissal,  which  shall  be  a  bar  to  another  prosecu- 
tion for  the  same  offense.  The  defendant  shall  thereupon 
be  discharged,  unless  the  court  is  of  the  opinion  that  the 
transaction  involved  in  the  charge  constitutes  a  different  of- 
fense, in  which  it  may  hold  the  defendant  and  direct  the 
matter  to  be  submitted  to  the  same  or  another  grand  jury, 
or  direct  another  preliminary  examination. 

The  portion  of  this  section  relating  to  informations  follows 
section  9108  of  Montana  Revised  Code  of  1907,  section  4694 
of  Utah  Compiled  Laws  of  1907,  section  6645  of  Compiled 
Laws  of  Oklahoma  of  1909,  and  section  2481  of  Missouri  Stat- 
utes of  1899.  Somewhat  similar  statutes  are  found  in  Kan- 
sas, Louisiana,  Michigan,  Wisconsin  and  other  states  and 
their  validity  is  unquestioned. 

New  York,  Wisconsin,  Montana,  Texas,  Louisiana,  Mis- 
sissippi, and  other  states  have  enacted  statutes  providing  for 
amendment  of  indictments. 

The  spirit  of  our  law  demands  the  disregard  of  techni- 
calities as  shown  by  sections  953-960,  1258  and  1404  of  the 
Penal  Code,  and  the  proposed  amendment  has  that  end  in 
view.  It  will  be  observed  that  under  the  proposed  law  the 
indictment  cannot  be  amended  so  as  to  change  the  offense 
charged. 

The  following  cases  illustrate  the  extent  to  which  the 
courts  have  sustained  amendments  to  indictments  and  infor- 
mation : 


CIVIL    AND    CRIMINAL    PROCEDURE.  21 

Amendment  of  Indictment. 

People  v.  Kelly,  6  Cal.  210 ; 

People  v.  Jones,  113  N.  Y.  S.  1097,  88  N.  E.  1127 ; 
State  v.  Hanks,  1  So.  458  (La.)  ; 
McGuire  v.  State,  44  So.  802  (Miss.)  ; 
State  v.  Gibson,  45  So.  271  (La.),  (cites  many  cases) ; 
Baker  v.  State,  59  N.  W.  570  (Wis.)  ; 
People  v.  Johnson,  10  N.  E.  690,  104  N.  Y.  213; 
State  v.  Shultz,  114  N.  W.  505  (Wis.) ; 
State  v.  Means,  61  S.  E.  898  (So.  Car.),  (objection  to 
indictment  waived). 

Amendment  of  Information. 

State  v.  District  Court,  104  Pac.  282  (Utah)  ; 
Lancaster  v.  State,  103  Pac.  1065  (Okla.) ; 
Rose  v.  State,  103  Pac.  1066  (Okla.) ; 
McLaughlin  v.  State,  102  Pac.  713  (Okla.)  ; 
State  v.  McKee,  17  Utah   370,  52  Pac.  733 ; 
State  v.  LaChall,  28  Utah   80,  77  Pac.  3 ; 
State  v.  Coleman,  186  Mo.  151,  69  L.  R.  A.  381 ; 
Wade  v.  State,  108  S.  W.  677  (Tex.)  ; 
State  v.  Oliver,  50  Pac.  1019  (Mont.). 

Hughes'  Criminal  Law,  section  2761,  and  Bishop's  Crimi- 
nal Procedure,  sections  97-98,  agree  that  amendment  of  in- 
dictments in  matters  of  form  may  be  provided  for  by  statute. 

Bishop,  section  711,  says  that  amendments  in  matters  of 
substance  can  be  made  to  a  limited  extent  if  at  all. 

III. 

ARRAIGNMENT 

Amend  Section  988  of  the  Penal  Code  so  as  to  Read  as 

Follows: 

SECTION  988.  The  arraignment  must  be  made  by  the  court, 
or  by  the  clerk  or  district  attorney  under  its  direction,  and 
consists  in  reading  the  indictment  or  information  to  the  de- 
fendant and  delivering  to  him  a  true  copy  thereof,  and  of 
the  indorsements  thereon,  including  the  list  of  witnesses, 
and  asking  him  whether  he  pleads  guilty  or  not  guilty  to  the 
indictment  or  information. 


22  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

The  amendment  omits  the  following  language  now  found 
in  the  section: 

Provided  that  if  an  indictment  has  been  found  against 
the  defendant,  at  the  time  of  his  arraignment,  he  shall  be 
served  with  a  true  copy  of  the  testimony  given  in  his  case 
before  the  grand  jury. 

It  leaves  the  law  as  enacted  in  1872.  The  proviso  now 
sought  to  be  omitted  was  added  in  1909,  evidently  to  make 
this  section  conform  to  section  925  hereinafter  referred  to. 

This  amendment  of  section  988  will  also  necessitate  the 
amendment  of  section  925  of  the  Penal  Code,  which  was 
amended  in  1897,  so  as  to  require  the  grand  jury,  on  demand 
of  the  district  attorney,  to  appoint  a  stenographic  reporter  to 
report  the  testimony  that  might  be  given,  and  providing  that 
a  copy  of  the  testimony  so  taken,  must  be  delivered  to  the 
defendant  upon  arraignment  after  indictment.  (Stats.  1897, 
p.  204).  The  same  section  was  further  amended  in  1909 
(Stats.  1909,  p.  1126)  so  as  to  require  that  all  testimony  in 
criminal  causes  being  investigated  before  the  grand  jury  must 
be  thus  reported  and  a  copy  must  be  filed  with  the  clerk  of 
the  court  within  ten  days  after  the  finding  of  the  indictment 
and  delivered  to  the  defendant  upon  his  arraignment  after  in- 
dictment as  provided  by  section  988. 

In  In  re  Kennedy,  144  Cal.  634,  which  lays  down  the  prin- 
ciple that  "the  court  cannot  inquire  into  the  sufficiency  of 
proof  or  the  mode  of  examining  witnesses  to  invalidate  an 
indictment,"  also  says  that  section  925,  Penal  Code,  which 
provides  for  the  reporting  of  the  testimony  taken  before  the 
grand  jury 

"on  the  demand  of  the  district  attorney,  is  evidently  for 
the  benefit  of  the  district  attorney — probably  for  the  pur- 
pose of  preventing  witnesses  of  a  certain  character  from 
safely  giving  testimony  before  the  trial  jury  different  from 
that  which  they  had  given  before  the  grand  jury." 

The  amendments  of  1909  to  sections  925  and  988  of  the 
Penal  Code,  it  is  clear,  are  for  the  benefit  of  the  persons  ac- 
cused by  the  grand  jury.  The  taking  down  of  the  testimony 
on  which  an  indictment  is  found  is  made  obligatory  and  a 
''true"  copy  thereof  must  be  served  upon  the  defendant  at 
the  time  of  his  arraignment. 

The  theory  upon  which  our  Penal  Code  was  framed  was 
that  all  proceedings  before  a  grand  jury  were  to  be  kept  secret 


CIVIL    AND    CRIMINAL    PROCEDURE.  23 

and  that  a  person  accused  by  a  grand  jury  was  entitled  to 
know  the  names  of  the  witnesses,  which  were  required  to  be 
endorsed  on  the  indictment,  but  it  was  not  his  right  to  have 
the  testimony  on  which  the  indictment  was  found. 

People  v.  Tinder,  19  Cal.  539,  an  opinion  by  Justice  Field, 
contains  a  presentation  of  the  older  theory  and  a  statement  of 
the  law  as  it  then  stood.  The  opinion  says : 

"The  deliberations  of  that  body  are  secret  and  the  law 
does  not  permit  the  testimony  received  by  them  to  be  dis- 
closed." 

And,  further: 

"The  statute  of  this  state,  in  regulating  the  proceedings 
before  grand  juries,  makes  no  provision  for  the  preservation 
of  the  testimony  which  may  be  taken  before  them.  And 
though  it  does  not  in  express  terms  prohibit  the  disclosure 
of  testimony  taken,  it  does  so  impliedly." 

The  Pacific  States  that  adopted  our  code  provisions  have 
not  amended  their  statutes  with  reference  to  the  testimony 
taken  before  the  grand  jury,  for  example : 

Utah,  sec.  4768,  Comp.  Laws,  1907 ; 
Oregon,  sec.  1328,  Ballinger  &  Cotton's  Compl.; 
Nevada,  sec.  4234,  Comp.  Laws,  1900; 
Idaho,  sec.  5371,  Comp.  Laws,  1902 ; 
Montana,  sec.  9190,  Comp.  Laws,  1907. 

Nor  is  the  testimony  taken  before  federal  grand  juries 
preserved  except  as  desired  by  United  States  district  attor- 
neys, nor  are  persons  indicted  by  federal  grand  juries  in- 
formed of  the  evidence  against  them. 

We  believe  that  the  requirement  that  all  the  testimony 
taken  before  grand  juries  shall  be  taken  down  by  a  stenog- 
rapher and  transcribed  and  filed  with  the  clerk  and  that  a 
copy  thereof  be  served  upon  the  defendant,  adds  unnecessarily 
to  the  expense  of  grand  juries,  encumbers  their  deliberations, 
robs  their  proceedings  of  secrecy,  and  gives  accused  persons 
(and  other  persons  who  are  likely  to  be  accused)  the  oppor- 
tunity of  thwarting  justice.  This  latter  consideration  we  deem 
to  be  an  important  one,  for,  while  in  theory  it  is  only  fair  to 
an  accused  person  to  know  what  the  witnesses  against  him 
have  testified  to,  we  know  that  under  our  system  there  is 
only  the  remotest  possibility  that  an  innocent  person  will  be 
convicted,  and  we  believe  that  such  information  is  commonly 


24  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

used  by  the  guilty  to  build  up  defenses  and  get  rid  of  wit- 
nesses. 

IV. 

EVIDENCE 

The  Enactment  of  a  New  Section  to  Be  Added  to  the  Penal 
Code  to  Be  Known  as  Section  1324,  as  Follows: 

SECTION  1324.  No  person,  otherwise  competent  as  a  wit- 
ness, shall  be  disqualified  or  excused  from  testifying  con- 
cerning any  of  the  offenses  enumerated  and  prescribed  in 
sections  67,  68,  74,  74a,  85,  86,  92,  93,  95,  96,  97,  99,  100, 
127,  137,  138,  165,  and  182,  on  the  ground  that  such  testi- 
mony may  criminate  himself;  but  no  prosecution  can  after- 
wards be  had  against  such  witness  for  any  offense  concern- 
ing which  he  was  compelled  to  testify  for  the  prosecution. 

We  think  that  the  enactment  of  such  a  law  will  make  it 
easier  to  secure  convictions  in  those  classes  of  crimes  where 
more  than  one  person  is  involved  and,  also,  that  the  law  will 
have  a  direct  tendency  to  discourage  such  crimes,  because  of 
the  fear  that  each  party  will  have  of  the  confession  of  the 
other. 

This  section  follows  generally  the  form  of  section  64  of 
the  Penal  Code.  A  law  based  upon  the  same  principle  is 
found  in  the  Statutes  of  1907,  page  675.  It  may  be  better 
in  making  the  amendment  to  follow  the  form  of  this  statute. 
We  understand  this  form  has  been  followed  in  New  York 
and  it  is  the  form  adopted  in  some  of  the  federal  statutes.  See 
Wigmore  on  Evidence,  sections  2250-2282. 

y. 
CONSTITUTIONAL  AMENDMENTS 

We  recommend  the  following  amendments  to  the  consti- 
tution : 

Amend  Article  I,  Section  7,  of  the  Constitution  so  as  to 
Read  as  Follows : 

ARTICLE  I,  SECTION  7.  The  right  of  trial  by  jury  shall  be  se- 
cured to  all,  and  remain  inviolate;  but  in  civil  and  crimi- 
nal actions,  three-fourths  of  a  jury  may  render  a  verdict, 


CIVIL    AND    CRIMINAL    PROCEDURE.  25 

provided,  however,  that  in  all  cases  where  the  death  pen- 
alty must  be  pronounced  by  the  court,  or  where  the  offense 
is  committed  before  the  adoption  of  this  amendment,  the 
verdict  must  be  unanimous.  A  trial  by  jury  may  be  waived 
in  all  criminal  cases,  not  amounting  to  felony,  by  the  consent 
of  both  parties,  expressed  in  open  court,  and  in  civil  ac- 
tions by  the  consent  of  the  parties,  signified  in  such  man- 
ner as  may  be  prescribed  by  law.  In  civil  actions,  and 
cases  of  misdemeanor,  the  jury  may  consist  of  twelve,  or 
of  any  number  less  than  twelve  upon  which  the  parties 
may  agree  in  open  court. 

The  change  consists  in  the  addition  of  the  words  printed 
in  black  faced  type.  The  purpose  of  the  amendment  is  to 
enable  nine  jurors  to  bring  in  a  verdict  in  any  criminal  case 
except  capital  cases.  As  is  well  known,  it  has  been  the  law 
of  this  state  since  1879  that  nine  jurors  can  enter  a  verdict  in 
a  civil  case. 

The  amendments  to  the  federal  constitution  with  respect 
to  trial  by  jury  have  no  bearing  upon  the  case,  as  they  are 
not  applicable  to  the  legislation  of  the  states. 

Barron  v.  Mayor  of  Baltimore,  1  Pet.  243;  8  Law  ed. 

672.    See  also  the  cases  cited  in  the  Note,  Law  ed. 
Fox  v.  Ohio,  5  How.  410 ;  12  Law  ed.  213 ; 
Walker  v.  Sauvinet,  2  Otto  90 ;  23  Law  ed.  678 ; 
Twitchell  v.  Pennsylvania,  1  Wall  321 ;  19  Law  ed.  223 ; 
Edwards  v.  Elliott,  21  Wall.  532 ;  22  Law  ed.  487 ; 
Ex  parte  Spies,  123  U.  S.  131 ;  31  Law  ed.  80 ; 
Ex  parte  Sawyer,  124  U.  S.  200 ;  31  Law  ed.  402 ; 
Eilenbecker  v.  District  Court,  134  U.  S.  31 ;  33  Law  ed. 

801; 

Twining  v.  New  Jersey,  211  U.  S.  78 ;  53  Law  ed.  97. 

A  state  law  providing  for  a  jury  of  less  than  twelve  jurors 
in  a  criminal  case,  does  not  deny  the  right  of  the  defendant 
to  due  process  of  law  in  violation  of  section  1  of  article  14 
of  the  federal  constitution. 

Maxwell  v.  Dow,  176  U.  S.  581 ;  44  Law  ed.  597. 

The  same  principle  has  been  enunciated  in  the  cases  hold- 
ing that  a  conviction  upon  an  information  instead  of  upon 
an  indictment,  is  not  illegal  by  virtue  of  the  fourteenth 
amendment,  which  prohibits  the  states  of  depriving  any  per- 
son of  life,  liberty  or  property  without  due  process  of  law. 

Hurtado  v.  California,  110  U.  S.  516 ;  28  Law  ed.  232. 
Ex  parte  Spies,  123  U.  S.  131;  31  Law  ed.  86. 


26  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

The  number  of  jurors  necessary  to  return  a  valid  verdict 
is  discussed  at  length  in  the  note  to  State  v.  Bates,  43  L.  R.  A. 
33,  wherein  it  is  shown  that  the  state  of  Florida  and  the 
state  of  Utah  have  provided  for  the  trial  of  criminal  cases  by 
juries  of  less  than  twelve. 

A  substitution  of  a  jury  of  eight  persons  in  place  of  a 
common  law  jury  in  the  case  of  a  crime  committed  before  the 
change  in  the  law,  constitutes  an  ex  post  facto  law. 

Thompson  v.  Utah,  170  U.  S.  343 ;  42  Law  ed.  1061 ; 
Thompson  v.  Missouri,  171  U.  S.  386 ;  43  Law  ed.  207 ; 
State  v.  Baker,  50  La.  An.  1247 ;  69  Am.  St.  Rep.  472 ; 
Murphy  v.  Commonwealth,  172  Mass.  264;  70  Am.  St. 

Eep.  266; 
State  v.  Ardoin,  51  La.  An.  169 ;  72  Am.  St.  Rep.  454. 

But  the  amendment,  as  proposed,  provides  an  exception 
for  offenses  committed  prior  to  its  passage. 

Amend  Article  I,  Section  13,  of  the  Constitution  so  as  to 
Read  as  Follows : 

ARTICLE  I,  SECTION  13.  In  criminal  prosecutions,  in  any 
court  whatever,  the  party  accused  shall  have  the  right  to  a 
speedy  and  public  trial;  to  have  the  process  of  the  court 
to  compel  the  attendance  of  witnesses  in  his  behalf,  and 
to  appear  and  defend,  in  person  and  with  counsel.  No 
person  shall  be  twice  put  in  jeopardy  for  the  same  of- 
fense; nor  be  deprived  of  life,  liberty  or  property  with- 
out due  process  of  law;  nor  be  compelled,  in  any  criminal 
case  to  be  a  witness  against  himself,  provided  that  the 
prosecuting  officer  may  make  such  comment  upon  the 
failure  of  the  party  accused  to  testify,  and  the  court 
may  give  such  instructions  to  the  jury  regarding  the  same, 
as  the  legislature  by  law  may  provide.  The  legislature 
shall  have  power  to  provide  for  the  taking  in  the  pres- 
ence of  the  party  accused  and  his  counsel,  of  depositions 
of  witnesses  in  criminal  cases  other  than  cases  of  homi- 
cide, when  there  is  reason  to  believe  that  the  witness  from 
inability  or  other  cause  will  not  attend  at  the  trial. 

The  change  consists  in  the  addition  of  the  words  printed 
in  black  faced  type. 

There  is  no  doubt  of  the  power  of  the  state  to  make  this 
change. 

Bowman  v.  Lewis,  101  U.  S.  22 ;  25  Law  ed.  989. 
Exemption   from   self   incrimination,   though  secured   as 


CIVII,    AND    CRIMINAL    PROCEDURE.  27 

against  federal  action  by  the  fifth  amendment  to  the  United 
States  constitution,  is  not  one  of  the  fundamental  rights  of 
national  citizenship  so  as  to  be  included  among  the  privileges 
and  immunities  of  citizens  of  the  United  States  which  the 
states  are  forbidden  by  the  fourteenth  amendment  to  abridge. 
It  is  not  safeguarded  as  against  state  action  by  the  due  proc- 
ess of  law  provision  of  the  fourteenth  amendment  of  the  fed- 
eral constitution. 

Twining  v.  New  Jersey,  211  U.  S.  78 ;  53  Law  ed.  97. 

This  case  contains  an  elaborate  discussion  of  the  subject 
and  goes  into  the  history  of  the  law  at  length,  showing  that 
it  was  the  practice  in  England,  several  hundred  years  after 
Magna  Charta,  to  question  the  defendant  in  criminal  cases. 
It  appears,  however,  that  all  of  the  states  of  the  union  have 
included  the  privilege  in  their  constitutions  except  the  states 
of  New  Jersey  and  Iowa ;  and  in  each  of  these  states  it  is  held 
to  be  part  of  the  existing  law,  citing : 

State  v.  Zdanowicz,  69  N.  J.  L.  619 ;  55  Atl.  743 ; 
State  v.  Height,  117  Iowa,  650 ;  59  L.  R.  S.  437 ;  94  Am. 
St.  Rep.  323;  91  N.  W.  935. 

The  contention  in  the  Twining  case  was,  that  the  court,  by 
commenting  upon  the  failure  of  the  accused  to  testify,  vio- 
lated his  fundamental  right  to  remain  silent.  The  New  Jersey 
court  held  that  this  was  not  a  violation  of  the  privilege,  and 
this  view  was  sustained  by  the  Supreme  Court  of  the  United 
States. 

In  Wigmore  on  Evidence,  sections  2250-51  et  seq.,  there 
is  a  full  discussion  of  the  privilege  against  self  incrimination, 
particularly  in  section  2251.  The  author  concludes  that  the 
privilege  should  be  preserved — pages  3097-3098. 

The  opposing  views  have  been  presented  by  the  supreme 
courts  of  California  (1869)  and  Maine  (1871)  and  we  quote 
from  the  opinions  at  length. 

In  People  v.  Tyler,  36  Cal.  529,  the  California  court  said: 

"At  the  trial,  by  his  plea  of  not  guilty,  the  party  charged 
denies  the  charge  against  him.  This  is  itself  a  positive  act 
of  denial,  and  puts  upon  the  People  the  burden  of  affirm- 
atively proving  the  offense  alleged  against  him.  When  he 
has  once  raised  this  issue  by  his  plea  of  not  guilty  the  law 
says  he  shall  thenceforth  be  deemed  innocent  till  he  is 
proved  to  be  guilty,  and  both  the  common  law  and  the  statute 
give  him  the  benefit  of  any  reasonable  doubt  arising  on  the 


28  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

evidence.  Now,  if,  at  the  trial,  when,  for  all  the  pur- 
poses of  the  trial,  the  burden  is  on  the  People  to  prove  the 
offense  charged  by  affirmative  evidence,  and  the  defendant 
is  entitled  to  rest  upon  his  plea  of  not  guilty,  an  inference 
of  guilt  could  legally  be  drawn  from  his  declining  to  go  upon 
the  stand  as  a  witness,  and  again  deny  the  charge  against 
him  in  the  form  of  testimony,  he  would  practically,  if  not 
theoretically,  by  his  act  declining  to  exercise  his  privilege, 
furnish  evidence  of  his  guilt  that  might  turn  the  scale  and 
convict  him.  In  this  mode  he  would  indirectly  and  prac- 
tically be  deprived  of  the  option  which  the  law  gives  him, 
and  of  the  benefit  of  the  provision  of  the  law  and  the  consti- 
tution, which  says,  in,  substance,  that  he  shall  not  be  com- 
pelled to  criminate  himself.  If  the  inference  in  question 
could  be  legally  drawn  the  very  act  of  exercising  his  option 
as  to  going  upon  the  stand  as  a  witness,  which  he  is  neces- 
sarily compelled  by  the  adoption  of  the  statute  to  exercise 
one  way  or  the  other  would  be,  at  least  to  the  extent  of  the 
weight  given  by  the  jury  to  the  inference  arising  from  his 
declining  to  testify,  a  crimination  of  himself. 

"Whatever  the  ordinary  rule  of  evidence  with  reference 
to  inference  to  be  drawn  from  the  failure  of  parties  to  pro- 
duce testimony  that  must  be  in  their  power  to  give,  we  are 
satisfied  that  the  defendant,  with  respect  to  exercising  his 
privilege  under  the  provisions  of  the  act  in  question,  is  en- 
titled to  rest  in  silence  and  security  upon  his  plea  of  not 
guilty,  and  that  no  inference  of  guilt  can  be  properly  drawn 
against  him  from  his  declining  to  avail  himself  of  the  privi- 
lege conferred  upon  him  to  testify  on  his  own  behalf;  that  to 
permit  such  an  inference  would  be  to  violate  the  principles 
and  the  spirit  of  the  constitution  and  the  statute,  and  defeat 
rather  than  promote  the  object  designed  to  be  accomplished 
by  the  innovation  in  question." 

The  views  of  the  Maine  court  expressed  in  State  v.  Cleaves, 
59  Maine  298,  8  Am.  Rep.  422,  were  as  follows : 

"The  statute  authorizing  the  defendant  in  criminal  pro- 
ceedings at  his  own  request,  to  testify,  was  passed  for  the 
benefit  of  the  innocent  and  for  the  protection  of  innocence. 

"The  defendant,  in  criminal  cases,  is  either  innocent  or 
guilty.  If  innocent,  he  has  every  inducement  to  state  the 
facts,  which  would  exonerate  him.  The  truth  would  be  his 
protection.  There  can  be  no  reason  why  he  should  withhold 
it,  and  every  reason  for  its  utterance. 

"Being  guilty,  if  a  witness,  a  statement  of  the  truth  would 
lead  to  his  conviction,  and  justice  would  ensue.  Being 
guilty,  and  denying  his  guilt  as  a  witness,  an  additional 
crime  would  be  committed,  and  the  peril  of  a  conviction 
for  a  new  offense  incurred. 

"But  the  defendant,  having  the  opportunity  to  contradict 
or  explain  the  inculpative  facts  proved  against  him,  may  de- 
cline to  avail  himself  of  the  opportunity  thus  afforded  him 


CIVIL    AND    CRIMINAL    PROCEDURE.  29 

by  the  law.  His  declining  to  avail  himself  of  the  privileges 
of  testifying  is  an  existent  and  obvious  fact.  It  is  a  fact 
patent  in  the  case.  The  jury  cannot  avoid  perceiving  it. 
Why  should  they  not  regard  it  as  a  fact  of  more  or  less 
weight  in  determining  the  guilt  or  innocence  of  the  accused? 
All  the  analogies  of  the  law  are  in  favor  of  their  regarding 
this  as  an  evidentiary  fact.  All  the  acts  of  a  party  accused, 
whatever  explains  or  throws  light  upon  those  acts,  all  the 
acts  of  others,  relative  to  the  crime  charged,  that  come  to  his 
knowledge  and  which  may  influence  him;  his  loves  and  his 
hates,  his  promises,  his  threats,  the  truth  of  his  discourses, 
the  falsehood  of  his  apologies,  pretenses  and  explanations; 
his  looks,  his  speech,  his  silence  when  called  upon  to  speak; 
everything  which  tends  to  establish  the  connection  between 
the  accused  and  the  crime  with  which  he  is  charged;  every 
circumstance  preceding,  accompanying  or  following  may  be- 
come articles  of  circumstantial  evidence  of  no  slight  impor- 
tance. 'A  statement  is  made  either  to  a  man  or  within  his 
hearing,  that  he  was  concerned  in  the  commission  of  a  given 
crime,  to  which  he  returns  no  reply,  the  natural  inference 
is,  that  the  imputation  is  well  founded  or  he  would  have 
repelled  it;  silence  is  tantamount  to  confession.'  Best  on 
Presumptions,  sec.  241.  Extra  judicial  nonresponsion,  when 
a  charge  is  made,  is  always  regarded  as  an  article  of  cir- 
cumstantial evidence,  the  probative  effect  of  which  may  be 
weakened  by  various  informative  considerations,  which  it  is 
not  now  necessary  to  discuss,  but  which  are  to  be  consid- 
ered and  weighed  by  the  jury. 

"When  the  prisoner  is  on  trial,  and  the  evidence  offered 
by  the  government  tends  to  establish  his  guilt,  and  he  de- 
clines to  contradict  or  explain  the  inculpatory  facts  which 
have  been  proved  against  him  is  not  that  a  fact  ominous  of 
criminality?  Is  his  silence  of  any  the  less  probative  force, 
when  thus  in  court  called  to  contradict  or  explain,  by  the  pres- 
sure of  criminative  acts,  fully  proved,  that  by  extra  judicial 
silence  when  a  charge  is  made  to  him  or  in  his  presence. 
The  silence  of  the  accused — the  omission  to  explain  or  con- 
tradict when  the  evidence  tends  to  establish  guilt  is  a  fact 
— the  probative  effect  of  which  may  vary  according  to  the 
varying  conditions  of  the  different  trials  in  which  it  may 
occur,  which  the  jury  must  perceive  and  which  perceiving 
they  can  no  more  disregard  than  one  can  the  light  of  the 
sun,  when  shining  with  full  blaze  on  the  open  eye. 

"It  has  been  urged  that  this  view  of  law  places  the  pris- 
oner in  an  embarrassed  condition.  Not  so.  The  embarrass- 
ment of  the  prisoner,  if  embarrassed,  is  the  result  of  his 
own  previous  misconduct,  not  of  the  law.  If  innocent,  he 
will  regard  the  privilege  of  testifying  as  a  boon  justly  con- 
ceded. If  guilty,  it  is  optional  with  the  accused  to  testify 
or  not,  and  he  cannot  complain  of  the  election  he  may  make, 
if  he  does  not  avail  himself  of  the  privilege  of  contradiction 
or  explanation.  It  is  his  fault,  if,  by  his  own  misconduct  or 


30  BAR  ASSOCIATION  OF  SAN  FRANCISCO. 

crime,  he  has  placed  himself  in  such  a  situation  that  he  pre- 
fers any  inferences  which  may  be  drawn  from  his  refusal 
to  testify,  to  those  which  must  be  drawn  from  his  testimony 
if  truly  delivered." 

The  California  opinion  no  doubt  correctly  expounds  the 
law  as  expressed  in  our  constitution ;  but  we  believe  that  upon 
the  general  principle,  the  reasoning  of  the  Maine  court  will 
appeal  to  most  people  as  sound.  The  average  man,  seeing  a 
defendant  remain  silent  after  evidence  has  been  presented 
tending  to  show  his  guilt,  will  be  apt  to  think  his  silence  is 
further  evidence  in  the  same  direction.  It  would  seem  better 
to  let  such  action  of  the  accused  have  its  natural  weight  than 
to  tell  the  jury  as  is  now  done,  that  it  must  shut  its  eyes  to 
this  very  obvious  evidence.  For  the  same  reason  the  silence 
of  the  defendant  should  be  properly  the  subject  of  comment 
by  the  prosecutor.  The  cause  of  justice  will  not  be  injured 
by  permitting  the  jury  to  draw  from  the  action  of  the  defend- 
ant such  inferences  as  are  indicated  by  common  sense  and  the 
experience  of  mankind. 

It  will  be  observed  that  the  proposed  amendment  merely 
puts  it  in  the  power  of  the  legislature  to  change  the  law  if  it 
desires.  The  constitutional  provision  is  not  self-executing. 


It  seems  hardly  necessary  to  say  that  the  proposed  changes 
do  not  include  all  of  the  amendments  that  might  with  ad- 
vantage be  made  to  our  codes.  For  instance,  the  matter  of 
instructions  to  juries,  especially  in  criminal  cases,  is  one  of 
great  difficulty  and  concerning  which  there  has  been  much 
criticism.  "We  have  not,  however,  arrived  at  any  conclusions 
upon  that  subject. 

We  also  commend  to  the  attention  of  the  bar  the  paper 
read  by  Chief  Justice  Beatty  at  the  meeting  of  the  association 
on  May  20,  1909,  regarding  the  jury  system. 

We  have  not  attempted  to  make  many  changes;  but  have 
confined  ourselves  to  a  few  amendments  which  we  deem  of 
great  importance. 

In  proposing  amendments  to  our  procedure  it  is  easy  to 
amend  one  section  in  such  a  way  as  to  affect  another  section 
which  may  at  the  time  be  overlooked.  We  therefore  hope  that 
this  report  will  be  carefully  examined  by  members  of  the 


CIVIL  AND  CRIMINAL  PROCEDURE.  31 

bench  and  bar  so  that  if  we  have  made  any  oversight  in  this 
respect  it  may  be  brought  to  our  attention. 

Respectfully  submitted, 

0.  K.  GUSHING, 
BOUTWELL  DUNLAP, 

1.  HARRIS, 

BEVERLY  L.  HODGHEAD, 
GRANT  H.  SMITH. 


APPENDIX 

LETTERS  OF  SUPERIOR  JUDGES 

A  letter  was  sent  to  each  superior  judge  of  the  state,  reading 
as  follows: 

This  committee  is  asking  each  of  the  superior  judges  of 
the  state  the  following  questions,  and  will  much  appreciate 
your  reply  thereto: 

1.  What,   in  your   opinion,   are  the   principal   causes   of 
delay  in  civil  cases? 

2.  What,  in  your  opinion,  is  the  remedy  for  such  delays? 

3.  What,   in  your   opinion,   are  the  principal  causes  of 
delay  in  criminal  cases? 

4.  What,  in  your  opinion,  is  the  remedy  for  such  delays? 

The  following  is  an  analysis  of  the  replies: 

Less  than  thirty  judges  sent  replies.  One  replied  that  tenure 
of  office  should  be  for  life.  Three  stated  there  was  no  delay  in 
criminal  cases  in  their  jurisdictions.  Another  stated  there  was  no 
cause  for  complaint,  except  in  San  Francisco,  where  there  should 
be  eighteen  departments.  One  said  it  is  not  the  law,  but  our  civi- 
lization and  people  which  are  at  fault. 

Another  said  that  in  his  county  (Alameda),  there  are  sixty  thou- 
sand people  to  one  judge,  with  which  condition  he  could  not  cope. 
Another,  that  in  counties  where  there  are  several  judges,  there  is 
not  a  proper  assignment.  Another,  that  there  are  not  enough  judges 
in  San  Francisco  and  in  Los  Angeles. 

Seventeen  expressed  themselves  that  continuances  were  the  cause 
of  delay.  Six  of  these  mentioned  both  attorneys  and.  judges  as  at 
fault,  while  eleven  mentioned  attorneys  alone.  Nine  criticized 
the  system  of  appeals;  seven,  our  system  of  choosing  jurors;  three, 
time  demurrers;  three,  the  too  great  attention  given  to  technicalities 
and  trivialities.  The  district  attorney  was  twice  criticized  for  delay, 
and  one  judge  believed  too  much  time  is  given  to  that  officer  to  file 
informations.  One  desired  instructions  given  by  topic;  another  said 
that  the  standard  for  admission  to  the  bar  should  be  raised. 

The  remedies  proposed  are  more  varied  than  the  causes,  and  may 
not  be  placed  under  topical  heads.  Continuances,  lack  of  judges  in 
several  counties,  system  of  appeals  and  the  choosing  of  jurors  stand 
out  prominently  in  the  letters  received  as  subjects  for  criticism  and 
the  attention  of  the  committee. 


LETTERS  OF  ATTORNEYS-GENERAL 

The  following  letter  was  addressed  to  all  of  the  attorneys-general 
of  the  United  States,  most  of  whom  favored  us  with  a  reply: 

This  committee  is  informed  that  in  at  least  one  of  the 
United  States  it  is  not  the  practice  to  instruct  the  jury  in 


CIVIL    AND    CRIMINAL    PROCEDURE.  33 

criminal  cases,  but  that  the  jury  is  the  judge  of  the  law 
and  the  facts. 

We  recognize  that  reversals  on  the  ground  of  errors  in 
giving,  refusing  or  modifying  instructions  are  quite  fre- 
quent. 

Will  you  kindly  inform  us: 

1.  Are  instructions  required  by  law  in  your  state? 

2.  Reference  to  the  statute  governing  the  same? 

3.  If  instructions  are  required,  what  is  your  experience 
with  respect  to  reversals  for  errors  in  instructions? 

4.  If  instructions  are  not  required,  what  is  your  experi- 
ence  as  to   the   efficiency  of  the   law  with  respect  to  the 
conviction  of  criminals,  and  the  justness  of  verdicts? 

5.  What   is  your   opinion  with  respect  to  the  necessity 
of  instructions  in  criminal  cases? 

6.  If  you  deem  instructions  necessary,  what,  if  any  limits 
do  you  think  should  be  placed  thereon? 

Any  information  that  you  deem  of  value  to  the  commit- 
tee, in  addition  to  the  answers  to  the  foregoing  questions, 
will  be  much  appreciated. 


The  following  is  an  analysis  of  their  replies: 

The  attorneys-general  of  the  various  states,  generally  agree  that 
reversals  are  frequent  for  erroneous  instructions;  all  of  them  think 
that  instructions  are  necessary,  but  many  of  them  believe  that  they 
should  be  limited  to  a  simple,  clear  statement  of  the  law.  Some  of 
them,  evidently,  are  of  the  opinion  that  appellate  courts  are  too 
ready  to  reverse  for  error  in  instructions.  The  attorney-general  of 
Virginia  says  that  whatever  instructions  are  given,  the  verdict  of 
the  jury  is  generally  right.  The  attorney-general  of  Idaho  has  come 
to  doubt  the  necessity  of  instructions  in  criminal  cases.  They  prac- 
tically all  agree  that  judges  should  not  comment  on  the  facts. 

The  attorney-general  of  Montana  thinks  that  their  new  prac- 
tice of  settling  instructions  before  they  are  given  (Sec.  6746,  Civil 
Practice,  and  sec.  9271,  Criminal  Practice)  and  that  of  requiring  ex- 
ceptions to  specifically  indicate  objections,  is  an  improvement. 

The  attorney-general  of  Missouri  says:  "Many  reversals  are  on 
technical  grounds,  and  would  not  have  affected  the  merits  of  the 
case  in  the  least." 

The  attorney-general  of  Oklahoma  says:  "Our  courts  will  not 
reverse  on  account  of  erroneous  instructions,  if  it  is  apparent  that 
none  of  the  substantial  rights  of  the  accused  were  prejudiced 
thereby." 

The  attorney-general  of  South  Dakota  thinks  instructions  should 
be  limited  to  a  "plain,  clear,  concise  statement  only  of  such  law  as 
is  necessary  to  a  determination  of  the  case." 


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